Belhaj & Anor v Straw & Ors

JUSTICE has intervened jointly with the International Commission of Jurists, Amnesty International and REDRESS in this case. Judgment was handed down in the Court of Appeal on 30 October 2014.

The Court affirms the right of Mr Belhaj – an opposition commander during the Libyan armed conflict of 2011 and now leader of the Libyan Al-Watan Party – and Ms Bouchar, his wife, to pursue a claim in the domestic courts against the UK officials allegedly involved in their abduction from China through Malaysia and Thailand and their transfer to Libya. The High Court (see below) had struck out his claim, arguing that “act of state” doctrine barred domestic judges from hearing the claim.

The Court of Appeal holds that the UK argument on state immunity to lack “any foundation in law” [para. 49]. Today, the Court finds that state immunity does not prevent claims being brought against UK officials in UK courts, simply because their actions are said to be connected to the acts of foreign states. The Court concludes that the “act of state” doctrine cannot bar the claim, because of the grave violations of human rights alleged by Mr Belhaj and the universal international condemnation of torture [paras. 114 – 121]. The Court emphasises that this claim concerns the accountability of UK officials and agencies, and unless the English courts exercise jurisdiction, these very grave allegations would escape judicial investigation [para. 119].

The claim involves allegations by a Libyan national and political opponent of the Gaddafi regime, that he and his family, including his pregnant wife, were abducted from China to Libya where they were subjected to torture, as part of the US programme of ‘rendition.’ The claim is brought against the Foreign Office and UK officials in the previous Government for a series of common law offences in connection with their involvement in the episode.

In the High Court, Simon J struck out Mr Belhaj’s action, holding that the ‘foreign act of state doctrine’ precludes the court from adjudicating upon the transactions of foreign states. He held that ‘to decide that the conduct of US officials acting outside the United States was unlawful, in circumstances where there are no clear and incontrovertible standards for doing so and where there is incontestable evidence that such an enquiry would be damaging to the national interest’ was beyond the jurisdiction of the court.

The Respondents have issued a cross appeal, asking the Court of Appeal to reverse the High Court determination that the law of State Immunity was not relevant in this case. If the claim is not struck out on the basis of ‘foreign act of state’ doctrine, the Respondents’ argue that State Immunity operates as a bar to justiciability.

The joint intervention is brought on the basis that the strike out in this case was based on an overly broad interpretation of the common law rule of justiciability based on the foreign act of state. The interveners argue that the High Court’s judgment acts as an absolute bar on litigation against the United Kingdom Government and its officials in circumstances where the agents of other states are involved (as is often the case where allegations of torture are made) and effectively immunises the state against accountability for breaches of fundamental rights. The Interveners consider that:

The expansion of the foreign act of state doctrine by the High Court is inconsistent with previous domestic case law, with the HRA 1998 and comparative practice.

The doctrine has previously been applied in limited circumstances. In those circumstances where it applies, clear exception has been made for claims involving clear violations of fundamental human rights law.

The doctrine is unknown in the civil law world and is largely a doctrine of Anglo-American common law.

If the doctrine is allowed to stand in its expanded form, it will violate the right to a hearing protected by Article 6(1) ECHR. In contrast to State Immunity, there is no international law basis for the ‘foreign act of state’ doctrine. The UK cannot rely on its competing international law obligations to justify restrictions to Article 6(1) rights in practice.

The Convention and the common law must be interpreted in line with the UK’s international law obligation to provide effective remedies for human rights violations (including under Article 13 ECHR) and to provide redress for torture victims, as guaranteed by the UN Convention Against Torture and the International Convention on Civil and Political Rights.

This claim is raised against UK authorities and officials. The law of State Immunity’ is grounded in international law and distinct from the foreign act of state doctrine. It is designed to shield foreign states from having to submit to the jurisdiction of the courts of other states. State Immunity only applies to the proprietary rights of a foreign state as well as claims directly against the actions of their agents, as opposed to the indirect implication of the United States in this case. No third states are impleaded in this case.

JUSTICE and the other NGOs are kindly represented pro-bono by Martin Chamberlain QC and Zahra Al-Rikabi of Brick Court Chambers.

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